Scottish Trans comments on the UK Government Response to the Women and Equalities Committee Report on Transgender Equality

Today, the UK Government published their response to the Women and Equalities Committee Report on Transgender Equality. Whilst the Scottish Trans Alliance welcomes some of the content, overall we think that the response is very disappointing. The UK Government makes reference throughout to the need to collect more evidence or do increased monitoring around certain recommendations, despite the fact that the Committee’s Inquiry already collected substantial evidence, and the Committee based their recommendations on that evidence. We think that a significant part of the UK Government’s response is weak, as it does not set out concrete proposals for making the necessary changes to improve trans people’s rights and lived experiences.

Of course, many issues covered by the Inquiry concern matters which are devolved to Scotland, including the Gender Recognition Act, the spousal veto (which Scotland does not have), NHS services, hate crime, education and prisons. As a Scottish organisation, therefore, our view of the UK Government’s response is of less relevance than that of trans organisations and people in England and Wales! The Scottish Government has already made stronger commitments on a number of issues covered in the UK Government’s response – most notably to reforming the Gender Recognition Act.

Below are our comments on the UK Government’s responses to each of the recommendations made by the Women and Equalities Committee Report on Transgender Equality. We have tried to make it clear where certain areas are devolved to Scotland, and there may already be better practice, or commitment to better practice, from the Scottish Government.

Recommendations 1 & 2 (Cross Government Strategy): Good response – UK Government will report on previous trans equality action plan and publish a new plan

Recommendation 3 (Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe): Disappointing response. The UK Government refuses to commit to Yogyakarta principles, saying current international and domestic legislation is sufficient. UK Government claims to be at forefront of Europe on trans equality, but this is no longer the case. Many countries around Europe (Malta, Denmark, Norway, Ireland, Sweden, The Netherlands, Belgium) now have better gender recognition law than the UK.

Recommendations 4, 5, 7 & 8 (Gender Recognition Act 2004): Very weak response. The UK Government says they will review the Gender Recognition Act, but makes no commitment to reform it. The Scottish Government’s position is much stronger and more progressive, and commits to reforming the Gender Recognition Act and bringing it in line with international best practice. This would include implementing all of the changes discussed in this response – moving to a process of self-determination, lowering the age at which you can access legal gender recognition, and legally recognising non-binary people.

Recommendation 6 (Spousal consent): Very weak response – no commitment to remove spousal veto, which was never included in the Marriage and Civil Partnership (Scotland) Act 2014, and therefore does not exist in Scotland.

Recommendation 9 (Data protection): Good response on investigating why there have been no prosecutions under Section 22 of the Gender Recognition Act (which makes it a criminal offense to reveal someone’s trans history if they have a Gender Recognition Certificate and you have found out in an “official capacity”). Weak response on protecting trans people from outing in court proceedings. The response simply reiterates the existing training and guidance for the judiciary, despite the inquiry having heard that this wasn’t currently protecting trans people from being outed.

Recommendation 10 (Gender reassignment as a protected characteristic): Very poor response – no commitment to amend the Equality Act. The UK Government seem to have fundamentally missed the point that not all trans people will be perceived as having the protected characteristic of ‘gender reassignment’ and that is exactly why the revision was recommended. For example a non-binary person who decided to continue to live in their assigned gender, but shared their non-binary gender identity with colleagues and experienced discrimination as a result of this, is not adequately covered by the ‘perception’ aspect of the legislation.

Recommendation 11 (EHRC Complaints): May be correct that no restriction exists in law

Recommendation 12 (Exemptions in respect of trans people): Weak – agree with the principle of the recommendation, but there is no commitment to amend the law to remove the exemptions as they apply to single-sex services. Whilst increasing numbers of single-sex services in Scotland are basing their policy on best practice and being trans inclusive, this still leaves uncertainty around the extent to which trans people have the right access to services which reflect their gender identity.

Recommendation 13 (Separate gender sport): We don’t have detailed knowledge on the way that this is dealt with in England and Wales to comment at any length. However, the UK Government response mentions improving participation within a wider LGB&T framework, and we hope that this allows for enough attention to be paid to the very specific barriers that trans people face in accessing sport, which can be rather different from cisgender LGB people.

(NHS Services): The UK Government highlights that it is not a lack of financial resources, but a lack of medical professionals with the expertise to work with trans people that is the biggest cause of long waiting lists for trans-specific healthcare. It does not suggest any practical solutions for how to address this problem. NHS Services are devolved to Scotland, and the STA will continue working with NHS Scotland to try to improve access to trans-specific healthcare.

Recommendation 16 (Treatment protocols): Fair response, particularly that the UK Government states “Gender dysphoria is not a mental illness”, but disappointing that there appear to be significant barriers to change, and no definite plan for how to move Gender Identity Clinics out of mental health trusts.

Recommendations 17-19 (Treatment protocols): Usefulness of response depends on NHS England action. These recommendations were specific to NHS England – would not have an impact on Scottish healthcare.

Recommendation 20 (The Tavistock Clinic): Usefulness of response depends on NHS England action – and once again this recommendation was specific to NHS England, and would not have an impact on Scottish healthcare.

Recommendations 21 & 22 (Hate crime legislation): Disappointing response on review of English hate crime legislation. Disappointing response on training for police – there is a much better commitment to this from the Scottish Government.

Recommendations 23, 24 & 25 (Recording names and gender identities): OK on review of gender markers; very disappointing response on gender X on passports. New Zealand and Denmark are two countries who don’t legally recognise non-binary genders, but do have gender X passports. It is also unclear why the UK Government think that an introduction of X markers on passports would have to be a legislative change or tied to non-binary legal gender recognition. The UK Passport Office could start issuing gender X passports simply by making an administrative change. It is also unclear why they would approach the International Civil Aviation Organisation about removing gender from passports, but are unwilling to accept the current option of an X.

Recommendation 26 (Prison and Probation services): Very weak response. The proposed timeline for the working group is 3 years – considering the two deaths in custody in English prisons of trans women within the last year this is not urgent enough. Also unclear how a policy can be “treating someone as the gender they identify with” if it is continuing to house them in a different estate. The Scottish Prison Service has a much better policy on housing trans people in custody, placing them in the estate which corresponds to their gender identity.

Recommendation 29 (Schools): Remains unclear what happens on Initial Teacher Training, and focuses on past work rather than changes for the future. Education is a devolved matter, so this recommendation does not apply to Scotland.

Recommendation 30 (Schools): Weak response – the use of “age-appropriate and sensitive manner” seems to leave too much room for interpretation – particularly when we know these are the exact types of arguments people will use for not providing trans-inclusive education. Education is a devolved matter, so this recommendation does not apply to Scotland.

Recommendation 34 (Social care for young people): The promised study is welcome – action is then needed

Recommendation 35 (Lack of sufficient understanding of transgender issues by professionals in the public sector): OK response – however we imagine that all of these services have equalities training that covers trans issues to an extent, and the letter may just get the response of “our staff are aware of their obligations under the Equality Act”. Monitoring of the effectiveness of the training provided is welcome, but it would seem that the inquiry and subsequent recommendation have already indicated that it is inadequate.